Gavin Davis vs. The Times et al

This ruling is based on the written submissions of DA MP Gavin Davis and those of Susan Smuts, legal editor of the Tiso Blackstar Group, which includes The Times newspaper.

Davis is complaining about a story in The Times of 30 October 2017, headlined Veil of secrecy as DA policy chief quits amid tensions ahead of 2019.

He also complains about a longer version of the same story published on the websites of Dispatchlive, Businesslive, Sowetanlive and Timeslive.

Complaint

Davis complains that the journalist did not:

· avoid the use of anonymous sources and did not take care to corroborate his information – with special reference to the alleged tension between the DA’s new director of communication, Ms Siviwe Gwarube, and himself;

· afford him a right of reply; and

· avoid a conflict of interest.

He asks for an apology, and insists that the journalist’s employer takes “immediate appropriate steps to avoid the conflict of interest arising from [the reporter’s] application to work for the DA as its Executive Director of Communications”.

The text

The article, written by Jan-Jan Joubert and Thabo Mokone, said that the DA had thrown a veil of secrecy over the resignation of its policy chief and head of media (Davis), “who quit in the middle of the party’s policy formulation process ahead of the 2019 elections”.

The resignation allegedly came over differences of opinion with colleagues about the formulation of policies and communication strategies.

The journalists stated a party insider claimed that Davis, “a member of Helen Zille’s inner circle during her tenure as party leader”, was disgruntled with the DA’s policy direction under its present leader, Mr Mmusi Maimane. They also reported sources said that Davis did not see eye to eye with Gwarube – who denied this allegation.

The arguments

Reliance on anonymous sources

Davis complains that Joubert did not avoid the use of anonymous sources, and neither did he take care to corroborate information gleaned from them. Instead, he submits, the entire article was based on speculative information.

In the longer online versions of the story, he says, the following claims were made based on information from anonymous sources:

· Staff members “disregarded” his directions, and he became “frustrated”;

· He “represented an earlier incarnation of the DA”;

· He “did not take kindly to new opinions”;

· He was “disgruntled with the DA’s policy direction under Mmusi Maimane’s current

leadership”; and

· He was “from the core liberal grouping in the party that was close to Zille” and that “such people are likely to sulk when they are not in the current inner circle.”

He says that these claims were, and remained, unsubstantiated rumour and hearsay. “And there is no evidence that the authors took any care to corroborate these allegations as required by clause 11.2 of the Press Code,” he attests.

In particular, he refers to the allegation of tension between him and Gwarube, submitting that the authors of the article provided no evidence of such conflict. In fact, he says, the two of them have a very good relationship.

He adds the newspaper may argue that the story was fair and balanced because it carried Gwarube’s denial of the claim. “However, what needs to be considered is how the story was written and was likely to have been interpreted by readers. Newspaper readers are likely to accord weight to allegations on the basis that a newspaper saw fit to publish them. As a result, readers may reason that ‘where there is smoke, there is fire’,” he argues.

Davis says the average reader was left with the false impression that the so-called tension between the two of them was a significant factor in his resignation.

“In this instance, the failure to corroborate the allegation should have been enough to kill off that aspect of the story. That the newspaper published the allegation – even when it was directly and openly refuted by one of the two people involved in it – was a clear lapse of journalistic ethics,” he says.

Davis concludes that the newspaper’s “reliance on anonymous sources, its failure to corroborate the rumour and hearsay gleaned from those sources, and its insistence on publishing a rumour despite a direct refutation by one of the people involved (and failing to seek the views of the other party), constitutes a clear breach of section 11.2 of the Press Code.”

Smuts replies that The Times was justified to rely on anonymous sources – the majority of them were DA members who were precluded by party protocol from speaking. “In fact, at a subsequent DA parliamentary caucus meeting, a senior MP called for all sources who spoke to us to be fired. This underpins the necessity of allowing sources to speak anonymously,” she states. The legal editor adds that the reporters spoke to different sources (eight in total) and their versions were consistent with one another. One of the sources was not a party member, but knew Davis personally.

Smuts summarises the salient information from the sources as follows:

Source 1

This source said:

· There was another big fight between Gwarube and Davis over the DA’s communication strategy;

· Gwarube refused to back down and was backed by staff present, who resent Davis;

· It was the old DA (Davis) vs. the new DA (Gwarube), and the latter won;

· There was disagreement between the two over policies, and Davis was frustrated because staff disregarded his directions; and

· People were saying Davis had resigned as head of policy, but that this was just a rumour at this stage.

Source 2

The source could not confirm Davis’s resignation at first, but later did so. Said it was not clear whether Davis’s frustration at being disregarded by staff had played a role in his resignation. Said Davis would remain as an MP and would likely succeed Mr Gordon Mackay as DA shadow energy minister. Would not discuss reasons for resignation.

Source 3

The source approached Joubert, asking if he had heard that Davis had resigned because the young staff, including Gwarube, did not want to listen to him. Said the two disagreed over policies, and that Davis was frustrated. Said Davis did not take kindly to new opinions. Not able to give any further information.

Source 4

A senior staff member confirmed there were tensions between Gwarube and Davis. Said Davis was not receptive to new ideas brought in by Gwarube in terms of the DA’s communication strategies. Said it was not clear if this was why Davis had quit.

Source 5

A staff member said he had not heard of the resignation but it would not surprise him.

Source 6

An MP said Davis was part of Ms Helen Zille’s inner circle and was probably sulking because he was not part of Maimane’s core circle as well.

Source 7

A very senior DA leader, who refused to say why Davis had resigned.

Source 8

A very senior staff member, who refused to say why Davis had resigned.

Smuts adds that, since publication, a:

· further source has confirmed the tension between Gwarube and Davis; and

· senior DA member has stated to a reporter that Davis was unhappy with Maimane.

She also points out that all the comments in the story were properly attributed to sources and were clearly allegations and not presented as fact. Also, Gwarube’s denial of any tension between herself and Davis was recorded.

Smuts submits there was no breach of the Press Code in attributing the information obtained in the story in the manner in which the newspaper did.

Davis replies the question is not whether it was fair and reasonable to rely on anonymous sources – the core issue at stake is the reliance on anonymous sources without successfully corroborating the information or interrogating its credibility.

Quoting several previous rulings by this office, Davis says it there was no evidence that the allegation was more than rumour and hearsay, then the allegation should not have been published at all.

He says screenshots of a text message exchange between Gwarube and him three days before the story was published “…show there was no tension between [the two of them] – quite the opposite in fact”.

Those texts read:

Davis (Thursday 26 October, 15:28): “Hi Siviwe I have stepped down from my operational roles in the party. I therefore won’t be attending the Friday Issues meeting. Of course I will carry on as media whip and I'm always happy to chat or be a sounding board. Let’s have coffee soon. Gav” – Gwarube (Friday 27 October, 08:27): “Hi Gav, I'm sorry to hear it. I'd love to do coffee and most certainly have regular meet ups and soundboard off you. Thank you for being open to it. Il set something up for next week. Have a stunning weekend. [smiley face emoticon]”

He says after the story was published, the two again exchanged the following text messages “that further underscore the absence of any tension between the two of us”:

Davis (Mon 30 Oct, 8:37): “That story by Jan Jan and Thabo is totally bizarre. First I have heard of any tension between us... Coffee this week?” – Gwarube (Mon 20 Oct): “Absolutely mad. Yeah, let's do coffee. Can you meet tomorrow morning say, 10?”

He concludes, “The evidence shows that there was no tension between Ms. Gwarube and myself, and that our relationship had nothing to do with my resignation. In other words, the allegation in the article was not ‘essentially true’ and did not even contain a vestige of truth. It should therefore not have been published.”

Regarding the newspaper’s argument that different sources were consulted and that, because their versions were consistent with each other, there was “cumulative weight” to the information they shared with the newspaper, Davis replies as follows:

· The quality of the information put forward by the sources should be considered. For example, none of the sources pointed to any specific disagreement between Gwarube and himself; and neither was there any indication of when or where the alleged disagreement took place, what the alleged disagreement was about, or whether it was a long-standing or once-off disagreement. “The vagueness of the information provided by the source would surely set off an alarm bell for a decent and ethical journalist genuinely seeking to get to the truth of a matter. However, instead of pressing their sources for specific details, the journalists in this particular case were content to publish vague rumours and hearsay”; and

· Of the eight sources only three mentioned any tension between Gwarube and himself (sources 1, 3 and 4). Also, these sources mentioned the same rumour – which did not mean that the allegation was properly corroborated. “It is quite possible for three sources that work in proximity with each other, or move in the same circles, to repeat the same rumour in the absence of any factual information. After all, that is the very nature of rumour – it spreads from one person to another.” Besides, the likelihood of a rumour being true does not increase according to the number of people who pass it on. It is also noteworthy that source 3 approached the journalist unsolicited. This introduces the possibility that he or she may have been proactively colluding with source 1 to drive a particular agenda. “When relying on anonymous sources, journalists need to be alive to the possibility that there are often political or personal agendas at play”.

He concludes, “In sum, the newspaper failed to treat the vague information obtained from anonymous sources with the due care required by the Press Code. There was no vestige of truth to the allegations and, in the absence of any credible evidence or specifics, the newspaper should not have published the allegations. The contention that the newspaper breached section 11.2 of the Press Code therefore stands.”

Analysis

As Davis has pointed out, I have over the years repeatedly said that the use of anonymous sources is dangerous, which is why Section 11.2 of the Press Code warns against it. However, it is equally clear that there may be circumstances where there is no other way to deal with a story (see the same section of the Code) – on condition, though, that information gleaned from such sources should be corroborated.

For clarity’s sake, let me cite Section 11.2 in full: “[The media shall] avoid the use of anonymous sources unless there is no other way to deal with a story. Care should be taken to corroborate the information.”

Smuts’s argument that DA members were prohibited from giving information on the record has to carry weight, together with the public importance of the matter. Clearly, the use of anonymous sources was justified in this case.

The next question is whether the newspaper corroborated this information, as required by the Press Code.

Pertinent to this question, as Davis has correctly pointed out, is the question of just how independent these sources were of each other, and how credible they were. If, for example, a man is alleged to have stolen money from his workplace, it would be insufficient to get his wife, children, siblings and parents to deny this allegation – these sources would not be independent of each other and, of course, not credible.

In this case, Smuts attests to eight sources from different perspectives and designations. That, I believe, would go a long way in constituting proper corroboration.

It is also true that only three of the sources mentioned tension between Davis and Gwarube, of whom one approached Joubert (and not vice versa). However, Smuts has disclosed the identities of several sources to me, and I am satisfied that they were credible enough, as well as independent from each other.

This does not mean that the allegations are necessarily true, of course, as the very nature of an allegation is that its truth has not been established. What it does do, though, is to justify a newspaper to publish such allegations.

From the correspondence between Davis and Gwarube it certainly looks as if the allegations were unfounded, though – even though this provides me with a mere glimpse of the total situation. I can therefore understand his indignation at the publication of the allegations.

However, such is the nature of a liberal democracy and the freedom of speech that comes with it. Granted, this right is not absolute, but once the conditions set by the Press Code have been met, the media are free to publish.

In short, I do believe that The Times was justified to publish the allegations as allegations.

Failure to put specific allegations to Davis

Davis says he told Joubert on October 26 that he was not in a position to discuss his resignation as Head of Policy.

He says when Joubert approached him, he did not mention any specific allegations against him – his request was to discuss his resignation in general terms, which he declined. He adds that, if specific allegations were made against him in the period after he had been first approached for a general comment on the matter and before publication, then Joubert was obliged to put those specific allegations to him – which he also did not do.

He argues that, just because the subject of a report declines to discuss a matter in general terms, it does not give the journalist a blank cheque to write what he likes from that point onwards (particularly when the only information he has is based on rumour and hearsay from anonymous sources).

In particular, Davis says that Joubert did not seek his views on his relationship with Gwarube – which he describes as “very good”.

Smuts agrees that the newspaper should have put the specific allegations to Davis for comment. She also accepts that the reporter’s approach to him to discuss his resignation did not signal that the newspaper were planning to publish a story. “We apologise for this and invite him to respond on the record and for publication to the allegations made by sources,” she says.

She points out, though, that the journalist understood Davis’s response to mean he was not in a position to discuss his resignation, and not that he did not wish to. “There was no malice intended in the approach our reporter took,” she adds.

While thanking The Times for its acknowledgement, Davis says he does not wish to give the story further oxygen by inviting another article on it, as this will simply compound the damage done. He insists on an apology.

Analysis

Firstly, Joubert did ask Davis for comment – albeit a general enquiry about his resignation or not.

After the latter indicated that he was not in a position to comment, I do not think that Joubert was obliged to ask him specific questions about his resignation, including about his allegedly “tense” relationship with Gwarube – clearly, this statement in the story served as a possible explanation for Davis’s resignation (which he could or would not discuss).

I agree that Joubert should have tried to solicit comment on that issue, but I am not convinced that he was in breach of the Code for not doing so – not after Davis had refused to comment on his resignation.

Secondly, if a journalist contacts a subject, the assumption is always that it is in aid of a story to be published – except, of course, if indicated otherwise.

I am therefore not persuaded to find against the newspaper on this particular issue.

Conflict of interest

Davis says a conflict of interest material to this matter arose after Joubert’s application for the position of Executive Director of Communications at the DA in May 2017.

He says while it was Joubert’s constitutional right to apply for any position at any political party, he also opened himself up to accusations of conflict of interest by doing so. He argues, “It is therefore incumbent on newspapers to avoid conflicts of interest by, for example, preventing journalists from covering stories or beats in which they have a personal or political interest.”

Davis says he assumes, for the purposes of this complaint, that Joubert informed his editors of his conflict of interest. In that case, though, it is also fair to ask why the newspaper did not take steps to avoid the conflict of interest as required by the Press Code. “A political journalist seeking employment with a political party as its most senior communications director would seem to constitute a very clear conflict of interest,” he says.

He points out that in this matter, there was a specific conflict of interest, as the person who was appointed to the position of Executive Director of Communications instead of Joubert was, in fact, Gwarube – one of the subjects of the article in question.

He argues, “It would seem to be an elementary tenet of media ethics that journalists recuse themselves from reporting on a person they were recently in competition with for a position. There is, for instance, a possibility that the journalist may be harbouring a sense of personal disappointment at that person being selected instead of him, or he may have ambitions of replacing her should she vacate the position.”

In this case, he adds, readers were left to speculate whether the journalist was working to serve the public interest or his own personal or political interest.

Davis says this particular conflict of interest “…certainly appeared to have slanted the reporting of the story… Because it is a simple fact that Ms. Gwarube had nothing to do with my resignation, and bringing her into the story was therefore gratuitous, tendentious and factually inaccurate.”

Smuts denies Davis’s allegation that a conflict of interest arose in this case. She says Gwarube was not the subject of the article, Davis was – the former’s name only arose during inquiries into Davis’s resignation, when sources mentioned that there was conflict between them.

She adds, “[Gwarube’s] comment to the allegation was reported and no further mention was made of her. For the record, Thabo Mokone (co-author of the article) was the reporter who sought a response from Ms Gwarube.”

The legal editor says that, to the extent that there may or may not have been a conflict of interest insofar as Joubert had applied for a job with the DA while working on the Sunday Times/Times political desk, this was a matter for Sunday Times/Times to consider and deal with internally.

Davis says he does not buy the newspaper’s statement that he, and not Gwarube, was the subject of the article. He says this argument is premised on the notion that a story can only have one subject – which is patently false.

He says that, while Gwarube might not have been the primary subject of the story, she was certainly a “subject of critical reportage” since the article contained allegations about her relationship with myself (which is why the newspaper contacted her for comment in the first place).

Because of that, the reportage has damaged Gwarube’s reputation – he says she has indicated to him that, since the article was published, it has made her professional life more difficult due to its polarising effect on the DA’s internal politics.

He adds that people would speculate about the journalist’s motives. “In this case, it is certainly fair to wonder whether or not Mr. Joubert’s personal interest in the position of Executive Director of Communications at the DA slanted his reporting,” he says.

The bottom-line, he argues, is that a journalist applying for a paid position with a political party creates a conflict of interest that needs to be managed. “This conflict of interest could have been avoided by preventing the journalist from writing about the DA in general or – at the very least – from writing about the person he unsuccessfully competed with for the position,” he states.

Davis also contests the newspaper’s argument that this issue was an internal matter and, as such, fell outside the ambit of The Press Code. “The problem with this argument is that the failure to avoid the conflict of interest has had an impact on the newspaper’s reporting and, as such, is a matter to be dealt with by the Ombudsman in terms of The Press Code,” he argues.

He says it would appear that, based on the newspaper’s response, it was not aware of the journalist’s application for the position at the DA. He adds, “I have no reason to doubt the newspaper’s word on this, but it must be stated here that it is not the first time that Mr. Joubert has been implicated in inappropriately involving himself in DA politics. In fact, Mr Joubert’s editors have previously been made aware of Joubert’s involvement in the DA and the impact of this on his reporting.” (For example, in 2014, the then DA Leader and Premier of the Western Cape Helen Zille met with the editor of the Sunday Times and other senior editorial staff to discuss Joubert’s “inappropriate conduct” and his reporting on the DA.)

Davis also says it is common cause in the political-media fraternity that Joubert’s closeness to certain factions within the DA has tainted his reporting on the party. He mentions “a particular concrete example” in which the reporter “has allowed his political proximity to cloud his journalistic judgement”.

He adds that, on 28 June 2017, Joubert sent an unsolicited email to DA MPs (James Selfe, John Steenhuisen, James Lorimer, Geordin Hill-Lewis and himself) with the subject line: “Confidential: Some EFF policy shifts”. The body of the e-mail contained an opinion piece authored by EFF Chief Whip Floyd Shivambu that was due for publication on July 2.

He says this was inappropriate – journalists who are privy to the contents of the next edition are duty-bound to closely guard that information. He argues, “Sending a political party’s opinion piece to a rival party before publication is an egregious breach of a fundamental tenet of journalistic ethics. More than this, it is itself a breach of The Press Code, which enjoins publications to avoid ‘practices that could lead audiences to doubt the media's independence and professionalism’.”

Davis concludes that Joubert’s enmeshment with the DA (and factions and personalities therein) has resulted in dubious journalistic practices that slant his reporting on the party and the people in it. The newspaper, he adds has an obligation in terms of The Press Code to proactively manage and avoid this conflict of interest.

Analysis

Davis’s complaint that Joubert was conflicted is an extremely serious one. The Preamble to the Press Code does not say for nothing, “As journalists we commit ourselves to the highest standards, to maintain credibility and keep the trust of the public. This means always … acting independently (read: not allowing outside influences to slant reporting)”.

In sync with this, Section 2.1 of the Code states, “The media shall not allow commercial, political, personal or other non-professional considerations to influence or slant reporting. Conflicts of interest must be avoided, as well as arrangements or practices that could lead audiences to doubt the media's independence and professionalism.”

And, as Davis correctly points out, a breach of this section of the Code is viewed as the most serious possible (a Tier 3 breach), which gives this office the widest possible powers of sanction.

I have asked Smuts when the editor got wind of the fact that Joubert had applied for a paid post at the DA. She replied that the newspaper only learnt of this when Davis has lodged his complaint.

I have no reason to disbelieve this – which means that I cannot hold the newspaper accountable for not preventing a possible conflict of interest. One cannot take appropriate action about something outside one’s knowledge.

Neither can I hold the journalist accountable. Section 1.2 of the Complaints Procedures states that the respondent in respect of a complaint is the proprietor of the publication (who may delegate to the editor or another suitable editorial representative the duty to respond to the complaint) – the respondent is not the journalist.

That is why I consistently, when finding for a complainant, ask the newspaper to apologise – not the reporter. A publication subscribes to the Code; journalists should adhere to it.

In this case, then, the institution which should hold Joubert accountable for a possible conflict of interest is not this office, but The Times (or Tiso Blackstar).

This is important because, as Davis correctly argues, the perception (whether true or not) has been created that Joubert was conflicted – both with regards to his stance towards the DA, and specifically with regards to Gwarube. This perception might have been unfounded – but perceptions are important, and negative perceptions should be avoided.

While Gwarube was not the primary subject of the story, it does not follow that a possible conflict of interest was not at play with regards to the journalist – which is why I believe the newspaper should hold Joubert accountable for not declaring his interests in this specific case.

In conclusion, then, I cannot find that the newspaper was conflicted. I believe its journalist could have been – and therefore I leave it to the publication to address this potentially extremely serious situation in any way it sees fit.

Finding

The complaint is dismissed.

Appeal

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.